Sathyan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI** **THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932** **Crl.Rev.Pet.No. 1261 of 2001()** **---------------------------------------** **CRA.390/1998 of SESSIONS COURT, KOZHIKOE CC.296/1996 of JUDL.MAGISTRATE OF FIRST CLASS, NADAPURAM** **....................** ## **REVN. PETITIONER(S)/APPELLANT/ACCUSED:** **--------------------------------------------------------------------** **SATHYAN, S/O.KELU, PABLLAKANDIYIL HOUSE, MUTHUVANNACHA AMSOM, PORAVOOR DESOM.** **BY ADV. SRI.P.V.KUNHIKRISHNAN** ## **RESPONDENT(S)/COMPLAINANT:** **----------------------------------------------** **STATE OF KERALA, REP.PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **PUBLIC PROSECUTOR MR. SABU SREEDHARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **P.Q.BARKATH ALI, J.** - - - - - - - - - - - - - - - - - - - - - ## **Crl.R.P No.1261 OF 2001** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of January, 2010 ## **O R D E R** Revision petitioner is the accused in C.C.No.296 of 1996 on the file of Judicial Magistrate of I Class, Nadapuram and appellant in Crl.Appeal No.390 of 1998 on the file of Sessions Court, Kozhikode. He was convicted under Section 55(a) of Abkari Act read with Rule 9 of Foreign Liquor Rules and was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.25,000/-, in default to undergo simple imprisonment for a further period of two months by the learned Magistrate by judgment dated 03.11.1998 which is confirmed in appeal the learned Sessions Judge by judgment dated 28.04.2001. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the prosecution as testified by PWs 1 to 3 before the trial court in brief is this : PW1 is the then Excise Inspector of Nadapuram Excise Range Office. PW2 is the Excise Guard therein. On June 14, 1996 at about 2 p.m., while they were petrolling along NadapuramVadakara Public Road, they searched the bus bearing registration 2 **Crl.R.P No.1261 OF 2001** No.KRC 9669 in front of P.Surendran Memmorial Library at Purameri. They found the accused travelling in the bus with a bundle in his lap. When it was opened it was found containing 10 bottles of Brandy containing 180 ML each. They seized the bottle containing illicit liquor and arrested the accused. PW1 prepared Ext.P1 search list and Ext.P2 Mahazar in the presence of independent witness PW3, who was the driver of the bus and registered the case against the accused under Section 55(a) of Abkari Act read with Rule 9 of Foreign Liquor Rules. PW1 conducted investigation in the case and laid the charge before the trial court. 3. The accused on appearance before the trial court pleaded not guilty to a charge under Section 55(a) of Abkari Act read with Rule 9 of Foreign Liquor Rules. PWs 1 to 3 were examined and Exts.P1 to P4 were marked on the side of the prosecution. MO1 series were also produced by the prosecution. When questioned under Section 313 Cr.P.C., the accused denied the entire incident. No defence evidence was adduced. 4. On an appreciation of evidence, the trial court found the accused guilty of the offence punishable under Section 55(a) of Abkari Act read with Rule 9 of Foreign Liquor Rules, convicted **Crl.R.P No.1261 OF 2001** 3 him thereunder and sentenced him as aforesaid. His conviction and sentence were confirmed in the appeal by the lower appellate court. Now the accused has come up in appeal challenging his conviction and sentence. 5. Heard the counsel for the appellant/accused and the Public Prosecutor. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 55(a) of Abkari Act and read with Rule 9 of Foreign Liquor Rules can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1: 7. I shall first consider whether the seizure of MO1 series of bottles containing illicit liquor from the accused is proved as alleged by the prosecution. PW1 the Excise Inspector, who detected the offence and PW2 the Excise Guard testified in terms of the prosecution before the trial court. I have gone through their evidence. Nothing was brought out during their cross examination to discredit their evidence. The evidence is supported by Exts.P1 to P3 search list, mahazar and occurrence 4 **Crl.R.P No.1261 OF 2001** report respectively. PW3 the independent witness also supported the case of the prosecution. The defence counsel was not able to shake their evidence in cross examination. The evidence of PWs 1 to 3 prove the search and seizure of MO1 series of bottles containing illicit liquor from the possession of the accused. 8. The next question for consideration is whether the conviction of the revision petitioner by the trial court under Section 55(a) of the Abkari Act can be sustained. The accused was found in possession of 10 bottles of Indian made foreign liquor 180 ML, thus a total of 1 litre and 80 ML. The permissible quantity of Indian made Foreign liquor that can be possessed by a person is 1.5 litres as seen from Rule 11 of Foreign Liquor rules. Initially it was 4.5 litres. It was subsequently reduced to 1.5 litres by SRO 225/1998 dated 5-3-1999 issued by the State Government under Section 10 and 13 of Abkari Act. A Division Bench of this court in **B.Abdulla v. Station House Officer and** **another** ( 2007(4)KHC 90) has held that in such cases the accused can be found guilty of only having been in possession of liquor in excess of the permissible quantity in violation of Section 10 and 13 of Abkari Act which is punishable under Section 63 of the Act. Following the principles laid down in the above decision, **Crl.R.P No.1261 OF 2001** 5 in the present case also the accused can be found guilty of only violation of Sections 10 and 13 of Abkari Act which is punishable under Section 63 of the Act. Therefore, the conviction of the appellant by the trial court under Section 55(a) cannot be legally sustained and the same is hereby set aside. He is convicted under Sections 10 and 13 read with Section 63 of Abkari Act. Point No.2: 9. As regards the sentence, I have set aside the conviction of the appellant under Section 55(a) of Abkari Act. He is convicted under Sections 10 and 13 read with Section 63 of Abkari Act. The maximum sentence that can be imposed under Section 63 of Abkari Act is imprisonment which may extend to two years and a fine which may extend to Rs. 2,000/-. The accused was found in possession of only 1.8 litres of Indian Made foreign Liquor. Therefore I feel that a sentence of fine of Rs. 2000/- with a default sentence to undergo simple imprisonment for two months will met the ends of justice. In the result, the revision is allowed in part . The conviction of the revision petitioner-accused under Section 55(a) of Abkari Act rendered by the trial court which is confirmed in appeal is set aside. He is convicted under Sections 10 and 13 read with 6 **Crl.R.P No.1261 OF 2001** Section 63 of Abkari Act. The sentence imposed by the trial court which is confirmed in appeal is also set aside and he is sentenced under Section 63 of Abkari Act to pay a fine of Rs. 2,000/-, in default, to undergo simple imprisonment for two months. One month time is granted for payment of fine. His bail bonds are cancelled. Sd/- ## **P.Q.BARKATH ALI, JUDGE** mns. //true copy// P.A.to Judge 7 **Crl.R.P No.1261 OF 2001**